Steve Richards: A mountain out of a Martin molehill

Everyone hails 'parliamentary privilege' but no one agrees what it is

Tuesday 9 December 2008 00:00 BST

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I cannot remember an occasion when the House of Commons was as packed on a Monday afternoon as it was yesterday. There was standing room only as MPs debated the arrest of Damian Green, an affair that has already captured the parliamentary spotlight twice before in the space of the last few days.

The persistent spotlight gives the impression that this story matters more than it does. I have no doubt that Green's arrest is of some significance. It manages to touch upon a range of emotive themes, but the wild evocations of Britain as a police state are a wilful misreading of the chaotic bungling and blurred lines of command that brought about the arrest, an event that is still shrouded in a degree of mystery.

Yesterday MPs were over the top again. The former cabinet minister Douglas Hogg spoke of concealment, duplicity and cover-up. Another Tory backbencher warned that the concept of liberty was at stake. They were only complaining about the time limit on the debate, and had not even started to purge their anger over the substance of the affair.

From the other side, senior ministers were equally excessive in imposing effectively a three-line whip on Labour MPs. This was a wholly unnecessary act of control that will fuel an over excited sense that the Government has got something to hide over this affair when it probably has not.

There is a good test of whether the intense anger over a sequence of events is justified: reverse what happened and assess whether the alternative sequence looks any more virtuous than the one being condemned.

In this case, let us imagine first that the Permanent Secretary in the Home Office had decided not to ask the police to investigate a series of leaks from his department. Would we all be singing his praises for his laid-back approach? We might be.

But we might also be screaming about his complacency if any of the leaks proved to be in some form or other a threat to national security. Internal leak inquiries are hopeless. Indeed we mock with good cause whenever the Government announces a leak inquiry. We know it will get nowhere. So there was a case for the Permanent Secretary to call in the police to investigate, as internal investigations are comically useless.

Should the police have agreed to investigate? Quite often they refuse to do so. The former Cabinet Secretary, Lord Butler, told me on the BBC's Week in Westminster at the weekend that he asked the police to investigate on several occasions. Nearly always they said "No". We are not sure why they decided to say "Yes" on this occasion. The Metropolitan Police are quite capable of making inept judgements, but I doubt if even they would have acted without any cause to do so.

What would have happened if they had refused to investigate? Would we have cheered them for their restraint? Again we might have done. But what if, as a result of their restraint, the leakers flourished to such an extent that genuinely sensitive security information became freely available? Would we all be praising the police then for holding back?

Next up is the role of the Speaker. At the very least he showed a complacent passivity in not asking more questions when he "was told" that the police was on the verge of arresting a Conservative MP. But the sweeping condemnations suggest that he faced no dilemma at all, that he should have turned the police away. What if he had prevented them from entering the office of an MP when it emerged subsequently that there were issues relating to national security? All hell would have broken loose.

I can read the fuming editorials now: "If ordinary citizens were the subject of a police investigation they would not be protected by a Speaker who arrogantly claimed special privileges. What hypocrisy! Like their expenses, their long holidays and the rest, MPs live by one set of rules and expect the rest of us to live by another. The Speaker must go now!"

I am not arguing in favour of the actual sequence that led to the mob-handed arrest of Green, but I am certain that the whole event is more complicated that it seems on the surface. These events are never as simple or quite as outrageous as the hyped up frenzy suggests. We still do not know why the police agreed to an investigation when they often turn down such requests. We do not know precisely what they are investigating or the details of what specifically prompted the Permanent Secretary in the Home Office to call them in.

Amidst the hyperbole on display in the debate, the former cabinet minister, Frank Dobson – no slavish follower of the Government – had the clearest sense of perspective. He noted that most of those involved probably wished they had acted differently, but he could see how the whole fiasco unfolded.

There were a series of leaks in the Home Office. As happens in these situations, the Home Secretary called on her top official to address the situation. He asked the police to investigate, "and there are plenty of precedents for such a move." The police identified a source of the leaks and that identification led them to Green, whom they could have questioned calmly. As Dobson pointed out, these days the police seem to be "arrest happy".

He was illuminating about the role of the Serjeant of Arms. She is responsible for security. The main agent she deals with is the Metropolitan Police, whom she meets regularly. In such circumstances, she is "unlikely to see them as jack-booted agents of the state". Above all, Dobson pointed out that everyone hails "parliamentary privilege" but no one agrees what it amounts to. What precise privileges had the Speaker overlooked? Here is another vague constitutional convention to join the blurred lines of accountability in relation to the Metropolitan Police.

From now on, if the police want to act in a similar manner again, they will need a warrant – and a high test will be set before one is granted. In the future, every case will be referred directly to the Speaker. Let us hope the Commons is as packed the next time they debate the economic crisis.